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According to a 2017 survey conducted by World Vision India, one in every two children in India has been a victim of sexual abuse. To tackle the menace, the government enacted the Protection of Children from Sexual Offences Act (POCSO), 2012. Yet, even with a comprehensive law on prevention of child sexual abuse, the scale of such offences keeps rising. The trauma young girls are forced to experience goes beyond the actual crime.
Recently, the Delhi High Court expressed concern over the “immensely grave” psychological impact on child sexual abuse victims when they are forced to appear physically or virtually in courts at the time of hearing of bail applications of the accused. Justice Jasmeet Singh was dealing with an appeal filed by a man convicted for perpetrating offences punishable under the POCSO Act and the Indian Penal Code upon his own daughter.
In December 2019, the man was sentenced for ten years’ rigorous imprisonment and fined for offences under Section 6 (punishment for aggravated penetrative sexual assault) POCSO Act read with Sections 376 (rape) and 506 (punishment for criminal intimidation) IPC. Justice Singh suspended the sentence of the man on the ground that he has already undergone a substantial portion of his sentence. The jail record showed he had already undergone a sentence of more than seven years, leaving the unexpired portion as 1 year and about 9 months. The suspension of the sentence was, however, subjected to the condition that the accused shall neither visit the state of Rajasthan where the victim stays with her mother, under any circumstances whatsoever, nor shall he come into contact with the victim or any member of her family.
During the course of the hearing, the Court was informed that many minor sexual abuse victims are being made to appear physically or virtually in courts at the time of hearing of the bail applications of the offender. At this juncture, the Court noted that the arguments in court proceedings vary from accusations to assertions doubting integrity and character of the victim while being forced to be present in the same space as the accused and potentially interact with him. The Court observed: “This has led to a situation where the victims are being forced to not only potentially interact with the accused person, but also be present in Court when the arguments regarding the offence are being taken up for hearing.”
“The psychological impact on a POCSO victim being present in Court is immensely grave as the arguments vary from allegations, accusations, doubting integrity, character etc. The prosecutrix/victim is forced to be present in the Court with the accused that is the same person who allegedly has violated her,” added the Court.
Seeking inputs from the Delhi High Court Legal Services Committee (DHCLSC) and the Delhi State Legal Services Authority (DSLSA) on the directions that can be issued to tackle the issue at hand, Justice Singh said that it is in the interest of the victim that she is not traumatised by reliving the incident during court proceedings which could be a trigger for her.
In a similar incident, the Patna High Court in F vs State of Bihar (2022), dismissed the appeal filed by a man convicted for committing repeated penetrative sexual assault on his two minor daughters, while observing that a sexual assault leaves a traumatic effect on a victim of a minor age which not only affects her physically, but also affects her emotionally and psychologically which ultimately leads to the destruction of her personality.
It is pertinent to mention that the POCSO Act mentions 12 key principles which are to be followed during the trial and for assisting the child during the trial, which are as follows:
* Right to life and survival: A child must be shielded from any kind of physical, psychological, mental, and emotional abuse and neglect.
* Best interests of the child: The primary consideration must be the harmonious development of the child.
* Right to be treated with dignity and compassion: Child victims should be treated in a caring and sensitive manner throughout the justice process.
* Right to be protected from discrimination: The justice process must be transparent and just; irrespective of the child’s cultural, religious, linguistic, or social orientation.
*Right to special preventive measures: It suggests, that victimized children are more likely to get abused again, thus, preventive measures and training must be given to them for self-protection.
* Right to be informed: The child victim or witness must be well informed of the legal proceedings.
* Right to be heard and to express views and concerns: Every child has the right to be heard in respect of matters affecting him/her.
* Right to effective assistance: Financial, legal, counselling, health, social and educational services, physical and psychological recovery services, and other services necessary for the child’s healing must be provided.
* Right to Privacy: The child’s privacy and identity must be protected at all stages of the pre-trial and trial process.
* Right to be protected from hardship during the justice process: Secondary victimization or hardships for a child during the justice procedure must be minimized.
* Right to safety: A child victim must be protected before, during, and after the justice process.
* Right to compensation: The child victim may be awarded compensation for his/her relief and rehabilitation.
Furthermore, Section 33 of the Act provides that the Special Court taking cognizance of any offence under the Act shall create a child-friendly atmosphere in courts and Section 36 provides that the child shall not be exposed to the accused in any way during testifying or presenting any evidence in the court. However, the child-friendly atmosphere, as envisaged under the statute, can hardly be seen in practice and it is nearly impossible to ensure that the minor victims do not get traumatized again or to keep them protected from the accused and his family members.
The apex court in 2019, in a suo motu petition in light of the increasing number of child rape cases in the country and their poor disposal rate in courts, had directed the state governments to set up child-friendly courts in each district of the country to deal with cases under the POCSO Act. Very little has been done in this regard. The law enforcement agencies must bear in mind that children are the future of our nation and thus, it is our primary duty to protect their childhood.
—By Banshika Garg and India Legal Bureau